Re Care Super (No 1) [2021] VSC 805

Appeared for trustee of Clerical Administrative and Retail Employees superannuation scheme, instructed by Mills Oakley.

Successful application for judicial advice as to lost trust deed and ownership of trustee shares.

EQUITY – Judicial advice – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 54.02 – Jurisdiction of court to provide advice – Factors relevant to discretion to provide advice – Degree of satisfaction required before the court should give advice – When court may provide advice even though advice affects persons not represented at hearing.

JUDICIAL ADVICE – Advice sought that consolidated deed the operative deed of the trust – Not all copies of amending deeds available – Degree of satisfaction required before the court should give advice – Presumption of regularity – Court satisfied to a reasonable degree of satisfaction on inferences and presumption of regularity – Advice provided.

JUDICIAL ADVICE – Advice sought that shares in plaintiff trustee held by directors of plaintiff personally and not on behalf of trust – Court satisfied to a reasonable degree of satisfaction that shares held personally – Advice provided.

JUDICIAL ADVICE – Whether trustee justified in determining a fee for services including by reference to a risk that penalties may be imposed under Commonwealth legislation for which the trustee cannot be indemnified under Superannuation Industry (Supervision) Act 1993 (Cth) ss 56(2) and 57(2) – Fee so determined not in contravention of the Superannuation Industry (Supervision) Act 1993 (Cth) – Whether plaintiff established that it intended to determine fee in accordance with judicial advice – Whether court would exercise discretion to give advice when the plaintiff did not establish that it intended to determine fee in accordance with judicial advice – Advice refused.

Judgment:

Re QSuper Board [2021] QSC 276

Appeared for the statutory trustee of QSuper, the Queensland Public Sector Superannuation Scheme, instructed by King & Wood Mallesons.

Successful application for judicial advice.

SUPERANNUATION – PUBLIC SERVICE FUNDS – where the applicant board is a body corporate board created by the Superannuation (State Public Sector) Act 1990 (Qld) – where the board administered a scheme established by a deed for the provision of superannuation benefits from a fund – where the board acted as the trustee for the fund – where the individual members of the board are themselves trustees by the same Act – where the deed can be amended by the board – where the board owed covenants to act in the best financial interests of its beneficiaries and prioritise those beneficiaries’ interests over others in the event of a conflict – where, due to amendments to relevant legislation, the breach of trustee covenants attracted increased civil penalties under the Superannuation Industry (Supervision) Act 1993 (Cth) – where the same reforms prohibited the trustees from obtaining an indemnity or exemption from such liability from the trust fund – where the applicant proposed to amend the deed to allow it to remunerate itself from the trust fund to create a contingency fund that could be used to pay fines, penalties and similar liabilities arising from the new legislation – whether the board is justified in consenting to the proposed amendment

SUPERANNUATION – PUBLIC SERVICE FUNDS – where s 96(2) of the Trusts Act 1973 (Qld) refers to “all persons interested in the application or such of them as the court thinks expedient” – where the fund has over 600,000 members – where the applicant notified each of the member associations that nominated board members about the application – where notifying all members of the fund would cost around $275,000.00 – whether wider notification of members is required.

EVIDENCE – NON-PUBLICATION OF EVIDENCE – PARTICULAR CASES – where the applicant relied upon legal advice, including the opinions of counsel, in the judicial advice application – where the applicant relied on commercially sensitive information in the judicial advice application – whether documents should be sealed on the court file or otherwise subject to redactions

Judgment:

Media coverage:

In re DSHE Holdings Limited [2021] NSWSC 608

Appeared for the deed administrators McGrath Nicol, instructed by Norton Rose Fulbright.

Successful application for termination of DOCA and administrator’s remuneration.

CORPORATIONS — deed of company arrangement — scope of power under s 90-15 of the Insolvency Practice Schedule — application for orders to facilitate the deregistration of the company without any intervening winding up — orders refused

CORPORATIONS — deed of company arrangement — orders terminating the deed of company arrangement — orders under s 447A of the Corporations Act 2001 (Cth) modifying the operation of the winding up regime created by s 446AA in relation to reporting to creditors

CORPORATIONS — deed of company arrangement — remuneration of deed administrator – where the remuneration claimed exceeds the total creditors’ claims

Judgment:

In re Ovato Print Group (application for scheme of arrangement)

Advising the Commonwealth, instructed by Norton Rose Fulbright.

By its implementation of the scheme established by the Fair Entitlements Guarantee Act 2012 (Cth), the Commonwealth Government provides financial assistance to eligible employees who lose their job due to the liquidation of their employer. The underlying public policy objective of the FEG Scheme is for it to constitute a safety net scheme of last resort for eligible, redundant workers.

These proceedings raised potentially significant public policy implications in the interplay between schemes of arrangement proposed pursuant to sections 411 and 413 of the Corporations Act 2001 (Cth) and the implementation of the FEG Scheme, particularly in the context of the fiscal support provided by the Commonwealth Government to corporate Australia during the COVID-19 pandemic. Whilst the Court recognised the novel nature of the interplay between the Ovato Schemes and the FEG Scheme, ultimately the Commonwealth did not oppose the application for approval of these schemes of arrangement, and the Court decided not to refuse to approve the Ovato Schemes on public policy grounds.

For further information, see NRF’s note and the judgments of Black J following the initial Convening Hearing and final Sanction Hearing.

Hunter and Central Coast Development Corporation ats Doma Group

Acted for the NSW Department of Planning, Industry and Environment and Hunter & Central Coast Development Corporation, instructed by Hall & Wilcox (Newcastle).

Expert Determination of dispute over costs associated with remediating asbestos contaminated land as part of a $200 million redevelopment of The Store site in Newcastle’s emerging West End. The redevelopment of the 12,000m2 site will provide an integrated masterplan delivering a new 15,000mm2 standalone office, retail and two residential towers and structured carpark.

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Royal Commission into National Natural Disaster Arrangements

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Appeared as Senior Counsel Assisting, instructed by King & Wood Mallesons.

The Royal Commission into National Natural Disaster Arrangements was established in response to the extreme bushfire season of 2019-20 which resulted in loss of life, property and wildlife and environmental destruction.

Public hearings were conducted using remote hearing technology during the height of the COVID-19 pandemic, involving over 300 witness appearances and thousands of exhibits and public submissions.

naturaldisaster.royalcommission.gov.au

Select media coverage:

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Royal Commission into Aged Care Quality and Safety

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This Commonwealth Royal Commission was established on 8 October 2018 in response to questions about the quality of aged care in Australia highlighted by the ABC TV’s 4 Corners program “Who Cares?”.

The Commissioners began their investigations by seeking from major Approved Providers detailed responses to extensive questions raised by the Terms of Reference, subsequently conducting hearings and case studies on a wide range of issues.

The Commissioners delivered an interim report on 31 October 2019, a special report on COVID-19 and aged care on 1 October 2020, and a final report on 26 February 2021.

Ms Hogan-Doran SC acted for:

  • Garden View Aged Care, instructed by Sparke Helmore in Sydney Hearing 1 - Dementia and Residential Care: Use of Physical and Chemical Restraints Case Study (March 2019)

  • Anglican Care, instructed by Hall & Wilcox, in Mildura Hearing - Carers for Older Australians (July 2019)

  • AMP Capital, instructed by Hall & Wilcox, in Sydney Hearing 5 - Funding, Financing and Prudential Regulation (September 2020)

  • Anglican Care, instructed by Hall & Wilcox (re ABC TV and Written Response of Approved Providers, January 2019)

  • Catholic Healthcare, instructed by Moray & Agnew (Written Response, January 2019)

  • RSL LifeCare, instructed by Clayton Utz (Written Response, January 2019)

  • United Protestants Assn of NSW, instructed by Hall & Wilcox (Written Response, January 2019)

  • Aegis Aged Care Group (WA), instructed by Hall & Wilcox (Written Response, January 2019)

https://agedcare.royalcommission.gov.au

Registered Organisations Commissioner v CEPU [2020] FCA 96

Acted for the Commonwealth Registered Organisations Commissioner in successful civil penalty proceedings against the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union for multiple contraventions of Fair Work (Registered Organisations) Act 2009 (Cth) requirements, which are fundamental to the concept of accountability of officers of registered organisations.

Contact Clerk (Sarah Tiffen): Email: clerk@5wentworth.com Phone: +61 2 8066 6111 Urgent Assistance: +61 416 697 853